Citation Nr: 21066411 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-00 376 DATE: October 29, 2021 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1973 to October 1975. In November 2016, the Veteran testified at a Board of Veterans' Appeals (Board) hearing in the Washington, D.C. Central Office before a Veterans Law Judge. A transcript of this hearing is of record. In an April 2018 correspondence, the Veteran was notified that the Judge who conducted his hearing in November 2016 is no longer employed by the Board. He was provided with an opportunity to schedule another hearing. However, the Veteran waived his right to appear at another hearing before the Board and requested that the case be considered based on the evidence of record. This matter was previously before the Board in July 2018 and again in September 2020. In the September 2020 decision, a decision not signed by the undersigned Veterans Law Judge, the Board denied the claim of service connection for sleep apnea. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court issued an order granting a Joint Motion for Remand (JMR) by the parties that asked that the September 2020 Board decision be vacated and remanded. Entitlement to service connection for sleep apnea. The Veteran claims that he is entitled to service connection for sleep apnea because, in substance, it is due to his military service nearly 50 years ago. In September 2020, the Board found the Veteran's statements regarding continuity of symptoms since service not credible because the Veteran failed to pursue an earlier claim for sleep apnea. The May 2021 JMR vacated and remanded the September 2020 Board decision because the Board erred when it failed to address the Veteran's May 8, 2020, statement that noted the following: I mention to QTC that I got punched in the nose and went to the ship's corpsman for treatment but he said there's nothing wrong. Never heard of this sleep apnea until years later. Even though I had trouble sleeping in the [service], I just thought it was just being tired from duty (port/starboard) watches. See May 2021 JMR; May 2020 Notice of Disagreement. The JMR asked the Board to address this statement, to the extent it provided an explanation for the delay in reporting the Veteran's condition and delay in pursuing a service connection claim for sleep apnea. It is important to note that this is an usual JMR in that the prior Board decision addressed the Veteran's lay statements. The JMR asks the Board to one limited aspect of the Veteran's statements. The Board will address this statement in further detail below. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002). However, as the Veteran has not been diagnosed with one of the enumerated disorders listed under 38 C.F.R. § 3.309 (a), application of 38 C.F.R. § 3.303 (b) is not warranted. Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Initially, the record shows the Veteran being diagnosed with obstructive sleep apnea in 1995. See, e.g., July 2019 VA Examination. The Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea while in service. Significantly, the Veteran's September 1975 separation physical examination fails to document any complaints of, or observed symptoms related to sleep apnea or any other chronic sleep complaints, even though he did mention other complaints. Nonetheless, the Board has previously acknowledged the Veteran's competent and credible statement that he sustained a nose injury when he was punched during active service. While a service connection claim for a nasal disability in service has not been raised, the Board believes that it must address, in part, this issue. Clearly, the Veteran recognized he was punched in the nose during service. More notably, the Veteran's 1975 separation examination failed to indicate a nose disability, marking his nose as normal. Here, in this case, the Board declines to draw inferences that are tenuous and suspect. The fact that the Veteran was punched during service does not indicate a nose disability, or more importantly, sleep issues caused by a nose injury. In a non-precedential Memorandum Decision, Judge Toth of the United States Court of Appeals for Veterans Claims (CAVC) emphasized that it is the Board's duty to determine whether evidence shows that the principle fact is true with a degree of certainty that satisfies the requisite standard of proof. See Davis v. McDonough, No. 20-3267 (September 22, 2021). As noted by Judge Toth, mere circumstantial evidence such as this can be compared with the annotations of Henry David Thoreau, who observed of "unscrupulous dairymen who diluted their milk with water to increase its volume, '[s]ome circumstantial evidence is very strong, as when you find a trout in the milk.'" See id. (citing Journal, 11 Nov. 1850, in 2 Journal of Henry D. Thoreau 94 [Bradford Torrey & Francis H. Allen eds., 1962]). In this case before the Board, the circumstantial evidence against this claim is very strong, providing some of the basis to find that the evidence is, overall, against this claim. In the Veteran's case, he was punched in service and was considered to have a normal nose both upon examination and separation from active service and for many, many years later. To draw an inference between the Veteran's punch of his nose and issues of sleeping in service or nearly 50 years thereafter is one the Board cannot make, as it provides no basis beyond mere reference between the two statements or events. Consequently, this is not a case where you might find "a trout in the milk" and the preponderance of the evidence is clearly against any association between being punched in the nose, a nose disability, and sleep issues during active service. In this case, in fact, the many inferences provide some evidence against this claim. The inferences in this case are clear. For example, the fact the Veteran never indicated there was a nose disability until this case provides additional evidence against his claim, the fact that post-service treatment records do not indicate a nose problem provides inferences against this claim, that the Veteran never filed a claim for a nose problem provides inferences against this claim, the fact that this problem was found decades after service provides inferences against this claim, and the fact that we are dealing with events that occurred nearly one-half century ago provides, as Judge Toth stated, yet more "trouts in the milk" that indicate that this case is not in equipoise and that the Veteran's alleged injury in service did not cause or aggravate sleep apnea. The post-service evidence does not reflect symptoms related to sleep apnea until approximately 1995, when he first received a diagnosis of obstructive sleep apneanearly 20 years after separation from service. Such a large gap in treatment and documentation of symptoms does not demonstrate continuity of symptoms since active service. The Board has considered the statements from the Veteran, particularly that he experienced symptoms such as snoring since active duty and did not know that this disability was. In this regard, while the Veteran is competent to report observable symptomatology, he is not competent diagnose a disorder such as sleep apnea, as this requires special testing, to include sleep studies, and specialist knowledge to make such a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Lay evidence it appears can be sufficient to support a claim for service connection for sleep apnea. Further, the Board cannot rely simply on the absence of treatment if the Veteran says he had those same symptoms but did not go for treatment because he (for example) could not afford it, was too busy, etc. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). In this case, given this record, the Board finds that the evidence in the form of the service medical records, and the post-service medical evidence provides highly probative evidence, overall, against the claim. Further, the Board determines that the Veteran's statements regarding continued symptomatology since active service, while competent, are nonetheless not credibly probative in establishing service connection. As an initial matter, the large gap in treatment for his sleep apnea weighs against the Veteran's statements that he has sustained symptoms since active service. In fact, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Specifically, his history of complaints since service are inconsistent with the service treatment records, as his separation examination does not reflect any complaints or symptoms related to sleep apnea, despite noting other issues. Additionally, the Board notes that the Veteran filed a claim for VA benefits in 1976, many years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims to have had for nearly 50 years, is inconsistent with the symptoms persisting since service caused by the nose injury. The Veteran also contends that he did not learn about sleep apnea until years after his time in service. See May 2020 Notice of Disagreement. During service, the Veteran thought his difficulty sleeping was due to being tired from duty watches. Id. The Board finds that these statements do not provide an explanation for his delay in reporting a sleep condition and delay in pursuing a claim for sleep apnea. While the Veteran did not know of sleep apnea when he filed his claim for VA benefits in 1976, the Veteran did not seek a claim for issues sleeping, including daytime somnolence, insomnia, or a nose problem. Even if he was unaware of what is considered "sleep apnea", the Veteran stated he had trouble sleeping in service and would feel tired. Therefore, if the Veteran continued to experience these symptoms, he would have filed an earlier claim for some type of sleep and/or nose disability. The fact that the Veteran denied any problems when he was discharge from active service also provides evidence against this claim. As such, the Board does not find the Veteran's statements regarding continuity of symptoms since service to be credible in this matter. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, and lay statements made during treatment). Moreover, while the Veteran indicated trouble sleeping in service, this does not necessarily indicate "sleep apnea". There are several possible causes for issues or trouble with sleeping other than sleep apena (including the cause the Veteran himself has indicated: long duty watches). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of sleep apnea falls outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The Board finds that the weight of the competent evidence does not attribute the Veteran's claimed sleep apnea to active-duty service. In this case, it is not simply the absence of evidence, but the evidence itself that is against this claim. As noted above, the Board has previously found that the Veteran gave competent and credible testimony that he was punched during active service, with a resultant bloody nose, despite there being no reports or records of such an incident ever having occurred in the record. In light of this, the Board remanded the claim in July 2018 so that an examination could be conducted, and medical opinion gathered. In July 2019, the Veteran was afforded a VA examination which included an in-person examination. At that time, the Veteran reported to the examiner that he sustained a trauma to his nose during service, after which he noted sleep issues and snoring, which have improved since undergoing surgery on his nose approximately 15 years ago. After a physical evaluation and review of the medical record and other evidence of record, the examiner opined that the Veteran's sleep apnea is less likely than not related to active-duty service. In support of this conclusion, the examiner noted that the separation physical was negative for any complaints or diagnosis or treatment of sleep or breathing issues, and that his sleep apnea was not diagnosed until 20 years after separation from active duty. This opinion is assigned significant probative weight as it is the only medical opinion of record and rendered by a medical professional familiar with the Veteran's record and in consideration of all facts of the case, to include the Veteran's own narrative of an injury in service. The Board has reviewed the evidence if record but found no competent medical evidence or opinions which would contradict this opinion. Indeed, the medical evidence of record, to include private treatment records from 2010, generally attribute his sleep apnea to post-service obesity, providing more objective evidence against this claim. In arriving at this conclusion, the Board has considered the assertions made by the Veteran relating his sleep apnea to his active service. Most of the information in this case comes from the Veteran himself. However, the Veteran's own statements provide evidence against his claim. Upon separation from service and when he filed a claim for VA benefits in 1976, the Veteran himself did not indicate issues or symptoms that could be associated with a sleep disability. If the Veteran truly experienced issues with sleeping since service, he would have certainly filed a general claim for VA benefits regarding a sleep disability, despite being unaware of what is considered "sleep apnea". It was not until October 2009over 30 years since separation from active servicethat the Veteran first filed an informal claim for sleep apnea. There are many inferences in this case that provide evidence against this claim. There Veteran's statement regarding this key issue is not credible. In this case, the only evidence of record relating the Veteran's condition to service is the Veteran's own general conclusory statements which have been found by the Board, the trier of facts in the case, to be inactuate. Both facts of this case and the best medical evidence in this case is against this claim, either of which provide a basis to deny this claim. Consequently, the Board finds that the weight of the evidence is against a finding of service connection for sleep apnea. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. Therefore, entitlement to service connection for sleep apnea is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.